Guidelines for Responding to Complaints of Discrimination, Harassment and Retaliation

Pre-Complaint Resolution StrategiesIndividuals are encouraged, but not required, first to bring their concerns to the person allegedly responsible for the behavior or action. In many cases, self-corrective measures may be taken when those persons alleged to have engaged in the behavior or action become aware of how their actions or behaviors are being received. The matter may be concluded by mutual consent at this point. However, the University recognizes that such a strategy may be inappropriate or ill-advised in some circumstances. At all times, individuals have the option to file a complaint with the Director of Insurance, EEO Compliance and Title IX Coordinator (“Director”), which will be reviewed in accordance with these Guidelines. These Guidelines do not replace, abridge or supersede the Student Code of Conduct.

I. PurposeThe purpose of these Guidelines is to set forth the general procedures that Seton Hall University (“the University”) may follow when responding to complaints concerning discrimination, harassment (including sexual harassment) and/or retaliation under the University’s Policy Against Discrimination, Harassment and Retaliation and the University’s Conscientious Employee Protection Act Policy. These Guidelines apply to complaints by or about University students and by or about faculty, administrators, staff members and all other employees of the University (collectively “University employees”), as well as vendors and guests. The Guidelines cover complaints by or about members of the University community involving conduct that occurred both on campus and off-campus at University sponsored activities, including internships, clinical and student teaching placements and other events. These Guidelines are meant to describe generally the University’s procedures for responding to complaints and conducting investigations of complaints, where necessary. The University may, in its sole and exclusive discretion, deviate from these Guidelines.

The President has delegated to the Director the responsibility for assuring the University’s compliance with anti-discrimination, anti-harassment, anti-retaliation and whistleblowing laws and regulations, including the review of complaints and the maintenance of an effective and impartial complaint review process. These Guidelines are under the jurisdiction of the Director and may be updated and revised by the Director, as needed.

In addition, any individual who believes he or she has been or is being subjected to harassing, discriminatory or retaliatory conduct is not required to utilize the University’s internal procedures and may proceed directly to the applicable federal or state governmental agency to file a complaint. Individuals are encouraged, however, to take advantage of the University’s procedures.

II. Types of Complaints

The types of complaints to which these Guidelines apply include:

1. Allegations of discrimination based upon membership, or the perception of membership, in any legally protected class, including but not limited to the following:

Age

Gender (including sexual harassment)

Handicap and/or Disability

Race

Color

Creed/Religion

Ethnicity

National Origin, Nationality or Ancestry

Affectional or Sexual Orientation

Gender Identity and Expression

Pregnancy

Veteran’s Status or Military Service

Marital Status (including civil union and/or domestic partnership)

Domestic Violence Victim

Arrest Status

Atypical Hereditary Cellular or Blood Trait

AIDS and/or HIV status

Genetic Information

2. Allegations of retaliation for making a complaint, participating in an investigation or otherwise engaging in legally protected activity under the University’s Policy Against Discrimination, Harassment and Retaliation.

3. Allegations of retaliation for making a complaint, participating in an investigation or otherwise engaging in legally protected activity under the University’s Conscientious Employee Protection Act Policy. This policy does not apply to the underlying complaint that forms the basis for the alleged retaliation, which will be handled by appropriate University personnel.

Retaliation against an individual who has filed a complaint, participates in the review/investigation process or has otherwise exercised any legally protected right is strictly prohibited. Anyone who engages in retaliatory conduct will be subject to disciplinary action up to and including separation from the University.

III. Procedures for Reviewing Complaints

An individual may file a complaint with his/her supervisor, Human Resources, the Director, or through Ethics Point. Supervisors and Human Resources personnel who receive complaints shall immediately notify the Director. The complaining party is encouraged to put the complaint in writing. A complaint should be made promptly to ensure that an expeditious review can be performed.

The aggrieved person is referred to as the “Complainant” while the person alleged to have engaged in the wrongful conduct is referred to as the “Respondent.”

Within five (5) business days after receipt of the complaint by the Director, the Director will determine, in his/her discretion, whether the complaint falls within the Director’s authority and notify the Complainant.

Within five (5) business days after notification to the Complainant that the complaint falls within the Director’s authority, as described above, the Director, in consultation with appropriate University personnel, will evaluate the complaint and determine whether an investigation and/or other action is necessary. Although consultation with University personnel is called for under these Guidelines, the determination of whether an investigation is necessary remains at all times with the Director.

In the event an investigation is determined to be necessary, the Director may act as the Primary Investigator and, in consultation with appropriate University personnel, will appoint a Co-Investigator. When the complaint involves a student, either as Complainant or Respondent, the Co-Investigator may be appointed from the Division of Student Services. The University may, in its sole discretion, elect to retain an external Investigator(s). When an investigation of the complaint is going to be conducted, the Director will notify the Respondent, in writing, of the complaint and describe the general nature of it. The Respondent may provide a written response to the complaint.

The Investigator(s) may, in his/her/their discretion, share documents and/or information gathered in the course of the investigation on a need to know basis.

Truthfulness and cooperation from all participants in the investigation is expected at all times.

Although the Investigator(s) may elect to record witness interviews, investigation participants are prohibited from recording any aspect of the investigation.

In the course of the investigation, the Investigators have the discretion to take any action deemed necessary to conduct a fair, timely and thorough investigation including, but not limited to, interviewing and/or obtaining written or recorded statements from the Complainant, the Respondent and others and reviewing documents (including electronically-stored information).

The Complainant and Respondent may be accompanied by another individual from the University community for the sole purpose of providing support. The support person may not have personal knowledge of or involvement in the matter being reviewed. Respondent’s supervisor may not serve as a support person. The support person is not permitted to participate in the investigation by, for example, asking or answering questions.

A participant’s legal counsel shall not be permitted to participate in or interfere with the University’s investigation.

Investigations will be completed as promptly as possible. The time to complete an investigation may vary depending upon the allegations, the number of individuals involved, and the complexity of the issues raised. The Investigators will keep the Complainant and Respondent apprised of the status of the investigation.

In evaluating the evidence and assessing credibility, the Investigators will use a “more likely than not” standard to find facts and determine whether a violation of University policy has occurred. The factual findings of the Investigators are final and are not subject to appeal.

The Investigators will prepare a report, which will be provided to appropriate University personnel. Neither the Complainant, the Respondent nor any participant in the investigation will be entitled to receive a copy of the report.

Within ten (10) business days following the completion of the investigation, the Complainant and Respondent will be advised verbally of the findings at separate meetings with appropriate University personnel. A confirming letter may be provided.

After completion of the investigation, a determination will be made by appropriate University personnel (such as the supervisor, division head and HR) regarding resolution of the matter and the necessary responsive action, if any. If the Respondent is a student, the Division of Student Services may invoke the Community Standards Review Process.

IV. Alternative Dispute Resolution

Mediation is encouraged as a first step toward resolution of a complaint. Because each matter is unique, however, mediation may not be appropriate in all situations. For example, complaints alleging sexual assault may not be mediated.

Both the Complainant and the Respondent must agree to mediate the matter before mediation can proceed. The mediation process may commence anytime after a complaint is made or during the investigation of a complaint.

The Director and appropriate University personnel must approve the use of mediation and any resolution reached as a result of mediation.

Mediation should be completed within twenty (20) business days of the agreement to mediate.

The Complainant, Respondent or mediator may terminate the mediation and proceed in accordance with the procedures set forth in these Guidelines. In the event that mediation is not successful and an investigation follows, the Complainant and Respondent agree that the Director can serve as the Investigator notwithstanding his/her role as the mediator.

V. Confidentiality and Recordkeeping
Confidentiality and discretion by those who participate in an investigation are recommended in order to maintain the integrity of the investigation and the privacy of individuals.
The University will use its best efforts to treat all complaints and mediations as confidential to the extent possible and in accordance with the law. However, the University does not guarantee confidentiality and information and documents may be shared by the Investigators and/or mediator(s), as necessary, with participants and others.
Copies of complaints, mediation agreements and investigation reports will be maintained by the Director. These records are to be maintained and treated as confidential to the extent possible and in accordance with the law. The contents of these records will be discussed or shared on a need to know basis.

Revised and approved by Dr. A. Gabriel Esteban, President, on the recommendation of the Executive Cabinet on July 31, 2014.